A Bitter Pill

Physicians Seek Justice for Network Terminations

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Law Feature — March 2014

By Crystal Zuzek
Associate Editor

Tex Med. 2014;110(3):39-44.

When insurance companies make business decisions that could have negative implications for Medicare patients' access to care and treatment continuity, it's a bitter pill for physicians. 

Thousands of Texas physicians discovered last fall they'd been terminated from UnitedHealthcare's Medicare Advantage plans. Houston ophthalmologist Albert Lin, MD, was among them. He received a letter notifying him in August that he'd no longer be part of the network effective Jan. 1. 

"I think United's actions will ultimately hurt patient care and the company financially," he said.

The matter has garnered national attention. Connecticut's Fairfield County Medical Association and Hartford County Medical Association sued United after the organizations learned the insurer began removing physicians from its Medicare Advantage network in October. 

In December, a federal appeals court granted the medical associations a preliminary injunction, preventing United from kicking physicians out of its Medicare Advantage plans until doctors could arbitrate their cases against United. The Court of Appeals for the Second Circuit declined United's request to stop the injunction pending the insurer's appeal and referred the case to a three-judge panel. 

The same month, the Texas Medical Association and the state medical associations of Connecticut, California, Florida, New York, New Jersey, and Tennessee, along with several county and specialty medical societies and the Physicians Advocacy Institute, filed a friend-of-the-court brief in the Second Circuit opposing United's motion to stop the preliminary injunction. Shortly thereafter, TMA, the American Medical Association, the AMA Litigation Center, the state medical societies of Connecticut, Florida, Georgia, Indiana, New Jersey, New York, North Carolina, Ohio, and Tennessee, and other organizations from across the country filed a separate friend-of-the-court brief 

The briefs filed by TMA and the other associations argue that the appeals court should maintain the injunction because it "temporarily keeps in place the arrangements between United and physicians that have functioned for years." Terminating the physicians will cause them "irreparable harm," but keeping the injunction in place will not hurt United, they wrote. United contends the injunction interferes with its right to manage its physician networks. 

TMA and the other medical associations got their wish. In January, the three-judge panel of the Second Circuit Court of Appeals left the injunction against UnitedHealth in place and ordered UnitedHealthcare the Fairfield County Medical Association, and the Hartford County Medical Association to resolve the dispute over United's network terminations through arbitration.

The injunction entered in Fairfield County Medical Association v. United HealthCare of New England, Inc. originated in and currently applies only to Connecticut. Attorneys for TMA and other medical societies, however, are trying to expand the case nationally because United's actions affect physicians in Texas and other states. Harris County Medical Society (HCMS) President Elizabeth Torres, MD, a Sugar Land internist, says approximately 1,100 Houston physicians have been terminated by United from its Medicare Advantage plans. HCMS learned of the terminations in August and contacted TMA.

"The impact to affected doctors and patients is huge. HCMS has been tracking terminations, and more than 50 percent affect solo practices and small groups in Houston," said Dr. Torres, a former member of the TMA Council on Science and Public Health. 

Dr. Torres adds that she thinks United's decision is risky.

"If each Houston physician terminated had a minimum of 10 to 15 patients on their panel, that would translate to 11,000 to 16,500 patients being affected. United is taking a risk assuming that the remaining specialists will be willing or able to take on additional patients or that patients will be happy to change physicians," she said.

Dr. Lin says he's grateful to TMA for working through the courts in the best interest of physicians and patients.

"I'm an independent, solo physician, and I don't have the resources to sway a big insurance company. TMA is good at evaluating situations like this and looking out for physicians and their patients. Physicians will benefit from having TMA on their side," Dr. Lin said.

United Responds

In response to the Connecticut lawsuit, United spokesperson Jessica Pappas wrote: "We firmly believe the changes to our network will encourage better health outcomes and the affordability of health care coverage for our Medicare members and are in keeping with our contractual commitments with physicians." 

When asked why United terminated some physicians from its Medicare Advantage plans, Ms. Pappas wrote: "Medicare, like all aspects of health care, is going through a transformation that will test the ability of doctors, hospitals, and insurers to find new and better ways to provide for the health care of a rapidly growing senior population. As a result, many health plans are making changes to their networks. Particularly in an era of Medicare funding cuts, these changes are necessary to respond to quality improvement imperatives and will improve United's ability to collaborate with physicians to encourage better health outcomes for its members and help keep health insurance affordable." 

Ms. Pappas didn't say how many Texas physicians United has terminated from Medicare Advantage plans but did say the company expects the network will be between 85 percent and 90 percent of its current size nationally by the end of 2014. 

"Changes in individual markets will differ depending on the local physician community, the health care needs of our members, and our responsibility to provide appropriate access to physicians and specialists," she wrote.

Ms. Pappas adds that United's "health plan networks will continue to expand and contract depending on numerous factors in the marketplace. We evaluate our provider networks for all of our lines of business on an ongoing basis."

Protecting Patients, Physicians

Edith Kallas, a New York attorney who focuses on health care and insurance litigation, prepared the amicus briefs for TMA and the other state societies. 

"At the appropriate time, TMA could seek to intervene and become a party in the action … in Connecticut," Ms. Kallas said.

Should TMA be able to join the case and should it result in a favorable outcome, Texas physicians could contest their network terminations via arbitration with United. 

In their brief, TMA and the other state medical societies told the appeals court the Connecticut lawsuit serves the interests of their members because "United's improper termination of physicians from the [Medicare Advantage] network would negatively affect other physicians, who would have to bear the burden of serving Medicare patients (at low Medicare rates) who would start coming to them in the absence of their regular doctors."

The brief explains that physicians and practices remaining in network would face undue strain "and potentially compromise those providers' doctor-patient relationships with their other patients. In addition, under United's unilateral amendment justification, all physicians in United's networks remain subject to termination at any time and for any of United's products. Thus, in challenging United's use of this method of termination, the associations are protecting all of their members' interests."

Among physicians' concerns regarding United's actions is the effect the decision will have on continuity of patient care. Over the course of her 27-year medical career, Dr. Torres has developed a knowledgeable and reliable referral base of specialists.

"Continuity of care is huge, especially if patients have complicated medical issues or are in the middle of an active treatment plan. Currently, if patients ask me which specialists they can see on their United Medicare Advantage plan, I have no way of knowing who is still in the network unless I call each office," Dr. Torres said.

Connecticut's county medical associations aren't the only organizations that have resorted to suing United. In late December, the Medical Society of the State of New York filed a federal lawsuit to stop the insurer from removing 2,000 of its member physicians from its Medicare plans effective Jan. 1. 

The medical society's complaint alleges United sought to offset "reduced federal payments under the Affordable Care Act" when it terminated physicians' Medicare contracts. At press time, an Eastern District court judge hadn't yet ruled on the injunction. Judge Pamela Chen denied United's request for a temporary restraining order on Dec. 23.

Physician Appeals Termination

In the termination letter United sent Dr. Lin, the company cited a provision of the physician's contract with the carrier as the basis for amending his participation status in the Medicare Advantage network. 

The provision states: "We can amend this agreement or any of the appendices on 90 days' written or electronic notice by sending you a copy of the amendment. Your signature is not required to make the amendment effective."

United offers Texas physicians the opportunity to appeal their termination from the Medicare Advantage network, and Dr. Lin opted to do so.

"I called my local United representative for information on required documentation for the appeal process. I was told simply to submit pertinent information. There were no requirements other than responding within 30 days of receiving the letter," Dr. Lin said.

TMA has a white paper that will help physicians appeal network terminations. (See "Help With Appeals From TMA.")

Before his appeal hearing, Dr. Lin sent United 100 pages of documentation that he says demonstrate his ability to provide cost-effective, efficient care. He included physician assessment reports from United that rate him as a cost-efficient provider and information from Medicare that shows he participates in the Physician Quality Reporting System (PQRS) and the electronic prescribing incentive programs and meets quality measures. 

"I think I was able to show that I take good care of patients. I showed on several United Medicare Advantage patients that I prescribe generic medications when appropriate, take a team approach to coordinated care, and don't repeat recently performed labs or tests," he said. "I genuinely care about my patients, and most of them wanted to stay with me after hearing about the termination. I don't want their care to be disrupted."

Dr. Lin's appeal hearing panel included two physicians (an obstetrician-gynecologist and an internist), a moderator, and a United administrator. 

"My feeling is that the appeal process was perfunctory. In September, prior to my hearing, I checked the Medicare Advantage network directory, and I had already been removed. During the appeal hearing, I explained that unlike a lot of ophthalmologists who provide general care and cataract surgery, I specialize in glaucoma treatment and surgery," Dr. Lin said.

In the end, Dr. Lin says it didn't matter. Effective Jan. 1, he was no longer in United's Medicare Advantage network, and his 60 affected patients had to sign up for another plan to continue seeing him or find another doctor.

"I understand that Medicare allows United to manage its network to ensure good geographic coverage, but I got the impression the company just decided to narrow the network and provide an obligatory appeal process. It was painfully obvious to me United made this decision without doing appropriate research first. I think this will hurt patients and the company in the long run," Dr. Lin said.

Patients Reassigned New Physicians

United formally notified physicians at Parkway Primary Care in Pflugerville they were being kicked out of its Physicians Health Choice Medicare Advantage plan in September, after the insurer stopped offering that particular plan to patients. By the time the letter arrived, Parkway's three physicians — Travis Bias, DO; Tina Philip, DO; and Shane Keller, MD — suspected something was amiss. 

 "We learned directly from our Physicians Health Choice patients that United had assigned them to a new primary care physician effective Oct. 1," Dr. Bias said. "These patients hadn't selected the new physician, and we received zero notice. Our Medicare patients, the most vulnerable and complex of all, were extremely confused and called us." 

United spokesperson Ms. Pappas stated in writing that United is "approaching member notices in a deliberate manner to make sure the information our members receive is accurate and provides clear direction. This includes suggesting in-network physicians when a primary care physician assignment is required for their benefit plan. Our members have the ability to either move forward with this suggestion or select a participating physician of their choice."

Ms. Pappas adds that "members with specific concerns may contact us and request to continue care with an out-of-network physician, and UnitedHealthcare will review such requests consistent with continuity-of-care requirements."

Parkway contacted United and persuaded the insurer to allow the physicians to continue seeing their 250 Physicians Health Choice patients through the end of 2013.

Dr. Bias says United's actions speak volumes about the state of health care in the United States.

"If there was any question as to who is running the health care system, this should give us a hint. It's not physicians, and it's not patients," he said.

Like Dr. Lin, Parkway's physicians were out of network by Jan. 1. Dr. Bias says some affected patients signed up for a different Medicare Advantage plan to continue seeing him and his partners. He says United's termination of him and thousands of other Texas doctors is disheartening.

"This furthers the fragmentation of our health care system. Some of these patients had only been with me 18 months or so and then were switched to a different primary care physician who will have to learn their history and with whom they will have to build a new rapport and trust from the beginning," Dr. Bias said.

Dr. Bias says he's hopeful TMA and other state medical societies and organizations can achieve some remedy for physicians and patients who have been distressed by United's terminations. 

"From a small practice standpoint, I'm not sure how else we'd seek any solution to this problem. We don't have the time or resources. That's what organized medicine can do for us — provide real-world, practical services that make a difference to us practicing physicians," he said. 

A Possible Trend

Dr. Torres says United's actions signal a trend, and Dr. Lin concurs.

"I am concerned that more payers may start to narrow their networks, thinking that they will be able to track quality better or hold doctors accountable better as a way to achieve cost efficiency. With a narrower network, administrative costs may be lower, and they may be able to offer a cheaper product," Dr. Torres said. "However, will this really translate to better patient care, if patient access is limited with fewer doctors available to see them?"

At press time, Aetna began informing Texas physicians they'd been removed from the network for the company's health insurance exchange plans. In one letter to a Texas physician, the company cited federal and state requirements to ensure "a wide range of both providers and services" as a factor in forming its new health insurance exchange network.

Dr. Torres says it's more important than ever that county medical societies and TMA work together to affect change. 

"Everything physicians do is being monitored and measured by the insurance companies these days. HCMS and TMA will be monitoring for threats to the practice of medicine and the doctor-patient relationship. As physicians, our determination to practice medicine and care for our patients in the best manner possible is immeasurable and our effort never ending," Dr. Torres said.

Crystal Zuzek can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by email.

SIDEBAR

Help With Appeals From TMA

TMA's white paper "Physician Steps in Termination of Network Participation" helps physicians appeal insurance network terminations. It is available from the TMA Knowledge Center by telephone at (800) 880-7955 or by email. The information addresses physicians' rights when faced with termination from insurance company networks.

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